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Indiana and Wisconsin Same-Sex marriage bans struck down


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Normally, reading court documents is only good for lawyers and insomniacs, but in this case, the judgement of the United States Court of Appeal for the Seventh Circuit is worth a read. A few quotes:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forward with any conviction -- that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended -- is so full of holes that it can't be taken seriously.

In the section that deals with the arguments from Indiana, it mentions that there's an exception to the law against first cousins marrying if those cousins are over 65. The comment on that one is:

Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children.

Later on, in response to an argument from one of the lawyers for Indiana:

In other words, Indiana's government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents -- model citizens really -- so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

"Go figure" must be a legal phrase that I'm not familiar with....

The state's lawyers tell us that "the point of marriage's associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem." Why the qualifier "biological"? The state recognizes that family is about raising children and not just about producing them. It does not explain why the "point of marriage's associated benefits and protections" is inapplicable to a couple's adopted as distinct from biological children.

In relation to adoption (allowed in Indiana, but not in Wisconsin):

The state should want homosexual couples who adopt children -- as, to repeat, they are permitted to do -- to be married, if it is serious in arguing that the only governmental in marriage derives from the problem of accidental births. (We doubt that it is serious.)

There's more little gems in the judgement :smile:

Disclosure: Because I was unable to cut-and-paste from the judgement, I had to transcribe the above content. Mistakes may have been made in that transcription.

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That one is being appealed to the full bench of the applicable court. There is a reasonable chance that that ruling will be overturned, which will restore the unanimity of court rulings since the Windsor decision.

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Here's another one I like, from the section talking about Wisconsin. Wisconsin puts forward four arguments against same-sex marriage. The judgement has the following about the fourth one:

And fourth, same-sex marriage is analogous in its effects to no-fault divorce, which, the state argues, makes marriage fragile and unreliable -- though of course Wisconsin has no-fault divorce, and it's surprising that the state's assistant attorney general, who argued the state's appeal, would trash his own state's law. The contention, built on the analogy to no-fault divorce and sensibly dropped in the state's briefs in this court -- but the assistance attorney general could not resist resuscitating it in the oral argument -- is that, as the state had put it in the submission to the district court, allowing same-sex marriage creates a danger of "shifting the public understanding of marriage away from a largely child-centric institution to an adult-centric institution focused on emotion." No evidence is presented that same-sex marriage is on average "less child-centric" and more emotional than an infertile marriage of heterosexuals, or for that matter that no-fault divorce has rendered marriage less "child-centric."

The judge appears to have fun poking holes in the arguments, while doing so in what I assume is a strictly legal way.

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One state recently judged the ban was OK. Which one was it -- Arkansas? Truly showing how backwater they are.


It was Louisiana. From NOLA.com:

U.S. District Judge Martin Feldman issued a ruling Wednesday (Sept. 3) upholding Louisiana's ban on gay marriage, breaking a string of 20-plus court victories for supporters of same-sex marriage since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. A spokesman for the Forum on Equality, which represents three same-sex couples suing state officials over the ban, said the plaintiffs will appeal Feldman's ruling to the 5th U.S. Circuit Court of Appeal.

Colin :icon_geek:

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